Terms of Service of Customer License and Sales Agreement
THE TERMS OF SERVICE UNDER THIS CUSTOMER LICENSE AND SALES AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER) AND OPEN ONE SOLUTIONS, INC. (“OPEN ONE”) FOR — USE OF Open One COMMUNICATIONS PRODUCTS OR SERVICES (COLLECTIVELY, “SERVICES”). IF YOU DO NOT AGREE TO THE TERMS OF SERVICE UNDER THIS LICENSE AND SALES AGREEMENT ALONG WITH THE TERMS OF SERVICE STATED ELSEWHERE INCLUDING WITHOUT LIMITATION, THE OPEN ONE WEBSITE (“SITE”) AND THE PIZABOX WEB PORTAL (“PORTAL”), DO NOT DOWNLOAD, INSTALL, OR — USE ANY OPEN ONE SERVICES INCLUDING OPENONE SOFTWARE (“SOFTWARE”) THE SITE, AND WEB PORTAL, (COLLECTIVELY “SYSTEMS”).
BY ACCEPTING OR USING ANY OPEN ONE SERVICES OR SYSTEMS, YOU AGREE TO ABIDE BY AND COMPLY WITH THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO SAID TERMS AND CONDITIONS, YOU AFFIRM THAT YOU POSSESS THE LEGAL RIGHT, CAPACITY AND ABILITY TO ENTER INTO THIS AGREEMENT, YOU ARE OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THIS AGREEMENT. Open One RESERVES THE RIGHT TO CHANGE ITS TERMS AND CONDITIONS OF SERVICE UNDER THIS LICENSE AND SALES AGREEMENT AT ANYTIME WITHOUT NOTICE, AND YOUR CONTINUED — USE OF SYSTEMS AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACKNOWLEDGEMENT AND ACCEPTANCE OF THESE CHANGES.
1. Terms and Conditions: These terms and conditions (“Terms and Conditions”) constitutes and governs a legal agreement between Open One Solutions, Inc. (“Open One”) and Customer, either an individual, a company, or an entity you are representing, for all Services provided by Open One to Customer. Customer represents and agrees they will not use any Open One Services that require fail-safe performance or in which the failure of the Services could lead directly to death, personal injury or environmental damage. By signing a Open One Quote Form (“Open One Quote”) with the title “Quotation” on the top right hand side of the form, for any Open One Service, Customer agrees to be bound by these Terms and Conditions. Customer and Open One are sometimes referred to collectively as the “Parties” or individually as a “Party”.
2. Term of Agreement: The initial term of this Agreement (“Initial Term”) begins on the date specified on the signed Open One Quote for the Open One Service Plans (“Service Plan”), chosen by Customer, and continues in full force and effect for the duration defined on the Open One Quote. Additional Terms (“Term” or collectively “Terms”) of this Agreement shall occur after the Initial Term. This Agreement shall automatically renew for the same term as the Initial Term, at the end of each Term (“Renewal Term”). Unless otherwise agreed upon in writing, the Renewal Term shall be at the then-current rates offered for Services and Service Plans. Either Party may cancel this Agreement at the end of any Term of this Agreement by providing the other Party thirty (30) days advanced written notice of its intent to cancel. Should Customer cancel prior to the end of any Term of this agreement, Customer shall be obligated to pay an Early Termination Fee (“Early Termination Fee”) which shall be equal to the monthly payments due from the cancellation date through the end of the Term of this Agreement based upon the Term stated on the Open One Quote signed by Customer which shall be considered a part of this Agreement. Customer can cancel this Agreement at its sole discretion during the first thirty (30) days of the Initial Term of this Agreement as further detailed in Paragraph 8 of this Agreement.
3. Open One Services and Equipment: Customer understands that Open One shall provide Services including telephones and other equipment (“Equipment”), be it for purchase or for rental, which are subject to the Terms and Conditions herein. Customer further understands that Open One’s obligation to provide such Services and Equipment to Customer is strictly contingent upon Customer’s timely payments for agreed upon Services. Prior to Services commencing, Customer will sign a Open One Quote that will outline all Services and Equipment ordered, including the terms of both payment and length of contract, along with its corresponding rates for desired Services and Equipment.
4. Additional Services: Customer may add additional Services or Equipment at any time during the term of this Agreement by agreeing to and signing a Service Order Addendum (“Service Order Addendum”). Each Service Order Addendum, once expressly approved by Open One, will be binding and deemed as an amendment to this Agreement, subject to the Terms and Conditions herein, and include without limitation, the pricing and payment terms as set forth in the original Open One Quote in addition to the pricing and fees for additional Services on the Service Order Addendum.
5. Cloud Services Location: Open One shall provide Services to Customer from its facility in Chicago, IL and/or other facilities at Open One’s sole discretion (“Facility” or collectively “Facilities”).
7. Implementation of Services: Open One will use commercially reasonable efforts to perform the implementation of Services ordered and agreed to by Customer’s signing of a Open One Quote and making an initial payment to Open One. Open One will also use commercially reasonable efforts to facilitate the request for all new numbers and the transfers and porting of existing numbers as outlined in Paragraph 31 and 32 below.
8. Availability of Service: Customer understands that it must obtain its own internet connection in order to use the Services. Customer further understands that Open One does not control either the access or quality of Customer’s internet connection and due to these reasons and coupled with the nature of the internet, Services may not be available 100% of the time. Open One will not be responsible for any third party product or service, or problems with the Open One Services that are caused by Customer’s internet connection. Open One will not be obligated to contact any third party on Customer’s behalf and Open One will not provide Customer a credit for interruption of service unless such interruption is a direct result of the gross negligence of Open One.
9. Money Back Guarantee: Customer has thirty (30) days from the date of the Initial Term of this Agreement as detailed on the Open One Quote for a prorated refund in accordance with a signed Open One Quote. After thirty (30) days, Customer waives its right to terminate Services and shall be required to pay for Services through the end of the Term of this Agreement, even if Customer decides to cancel this Agreement. If on a month-to-month agreement and service is canceled during month 2-6 their is a $100 per extension early termination charge along with a 25% restocking fee of the MSRP of any rental equipment being returned.
10. Billing of Services: Open One will deliver all invoices only via email to Customer on or about the 30 day anniversary of Customers in-service date. Payment terms are stated on the Open One Quote Form signed by Customer, which becomes part of this agreement. Customer agrees to pay for all Equipment and set up fees, if any, at the time the Open One Quote is signed. Billing for monthly Service commences upon ordering of the Services, and the first month’s monthly Service amount shall be pre paid at the time that the Open One Quote is signed. All payments made under this Agreement are non-refundable after the thirty (30) day Money Back Guarantee period as stated in Paragraph 8.
11. Payment of Services: Customer will pay for all Services ordered and any amount due under this Agreement in US Dollars. Open One shall invoice Customer for all Monthly Recurring Charges (“MRC’s”) including without limitation, any applicable installation charges, support charges, usage and other fees in full and in advance. All Non-Recurring Charges (“NRC’s”) including without limitation, termination charges, international calling, equipment return fees, activation fees, reconnection fees, porting fees, late fees, E911, Early Termination Fees and transfer charges, if any, may be billed in arrears or in advance if known at the time of invoicing. Should Customer terminate this Agreement, or for any reason not use all of the minutes and features in any given month, based on Customer’s Service Plan, Open One will not refund, transfer, credit or prorate any unused item.
12. Credit Terms and Conditions: All Services provided under this Agreement will be subject to the credit review and approval of Open One. Prior to the start of Service, Open One in its sole discretion will determine the credit worthiness of Customer. If Open One extends credit terms to Customer, and Customer becomes delinquent or their overall financial conditions changes adversely (in Open One’s sole and reasonable business judgment) and Open One does not have security from Customer in an amount equal to one month’s invoice, Open One may require additional security from its Customer within two (2) business days after written notice has been sent via email, certified mail, or overnight courier with written receipt confirmation. In the event of termination of this Agreement, Customer shall remain obligated to pay for any Services provided up through the date of termination (if Customer signed a no commitment contract), or through the end of the contract term if Customer signed a term commitment on its Open One Quote.
13. Non-Payment of Services/Late Fees: Failure to pay in full when Customer Payment is due will result in immediate suspension of account and Open One will have no liability for said suspension under any circumstance. Customer’s Services will be reactivated only when account balance is paid in full, including a $100 Reconnection Fee (“Reconnection Fee”). In addition to Open One collecting its Recollection Fee, if payment is not made within the terms established on the Open One Quote signed by Customer, Open One at its sole discretion may charge Customer a Late Fee (“Late Fee”) of 18% per annum of the invoice or the maximum rate allowed by law, compounded monthly.
14. Taxes and Other Fees: All charges billed to Customer for Services are exclusive of any taxes, customs, duties, value added, excise, federal, state, local, city, provincial, public utility, or other such similar regulatory fees, and are subject to change without notice. Customer agrees that they will pay said taxes and fees, however denominated and that may now or hereafter be levied on the Services as billed by Open One, and in addition to the other amounts otherwise charged to Customer including NRC’s and MRC’s, unless Customer provides Open One with a valid exemption certificate which Open One in its sole discretion may accept or reject.
15. Regulatory Recovery Fee: Open One shall charge Customer a Regulatory Recovery Fee on a monthly basis to offset costs incurred by Open One in complying with inquiries and requirements of federal, state and municipal government agencies. This Fee is not a tax or mandated by any governmental agency, but is charged based upon standard and customary industry practices.
16. Federal Universal Service Recovery Fee: Open One shall charge Customer a Universal Service Recovery Fee. This fee is mandated by the Federal Communications Commission (“FCC”). The Federal Universal Service Recovery Fee is used to recover contributions Open One is required to make to the Federal Universal Service Fund (“USF”), which is intended to promote universal access to telecommunications services in the United States, for those living in rural and high-cost areas, income-eligible consumers, health care facilities, schools and libraries. The fund is supported by charging telecommunication companies a fee which is set quarterly by the FCC and is subject to change.
17. Billing Disputes: Customer must notify Open One of any disputes in writing for any Services charged within thirty (30) days of the date of the charge by Open One to Customer. If Customer fails to provide disputes in writing, detailing the exact reason for dispute to Open One within this period of time, Customer hereby irrevocably waives its right to dispute charges for that time period and all bills are considered final with a presumption of correctness. Written statements disputing charges must be sent via email to billing@Open Oneint.com. All undisputed items must be paid within normal and agreed upon payment terms while the dispute is investigated. In the event such dispute is resolved in favor of Customer, Customer will receive a credit or adjustment, as appropriate, for the applicable Late Fees on the following monthly invoice. In the event such dispute is resolved in favor of Open One, Customer shall immediately remit payment for any withheld amounts. Failure to do so could result in a temporary suspension of Customer’s account and a Reconnection Fee could apply to reinstate Services if suspension has occurred.
18. E911: The Federal Communications Commission (“FCC”) and Canadian Radio-Television and Telecommunications Commission (“CRTC”) mandate that Open One provide E911 service to Customers who use Open One Services within the United States and Canada. CUSTOMER HEREBY ACKNOWLEDGES THAT THEY HAVE BEEN INFORMED THAT E911 SERVICES PROVIDED BY Open One DIFFERS FROM TRADITIONAL 911 SERVICES AND IN FACT MAY NOT WORK AT ALL IF THE CUSTOMER LOSES POWER OR INTERNET CONNECTIVITY OR FOR OTHER REASONS. CUSTOMER REPRESENTS AND WARRANTS THEY WILL AT ALL TIMES MAINTAIN EITHER A WIRELESS, TRADITIONAL WIRELINE PHONE SERVICE OR AN ALTERNATIVE METHOD AT THEIR DISPOSAL TO CALL911 EMERGENCY DIALING OR ANY OTHER APPICABLE EMERGENCY SERVICE NUMBER. CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS Open One AND ANY OF ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, EXPENSES, LOSSES, DEMANDS, ACTIONS, CA– USES OF ACTION, JUDGMENT FEES AND COSTS, OF ANY KIND OR NATURE WHATSOEVER ARISING FROM OR RELATED TO ANY POTENTIAL E911 FAILURES. CUSTOMER ALSO AGREES TO NOTIFY ANY POTENTIAL — USER, EMPLOYEE OR AGENT OF THE E911 SERVICES AND LIMITATIONS DETAILED IN THIS PARAGRAPH 18.
19. E911 Service Charge: Customers are required to subscribe to Open One’s E911 Services and E911 Service charges will be added to Customer’s invoice, and are in addition to applicable Service fees for the associated line. The monthly charge for E911 are assessed on a “per-line” basis and will be set at a level that reimburses Open One for the direct costs it incurs in providing E911 Services, including expenses it incurs for State, County or Municipal E911 surcharges. Open One reserves the right to adjust the level of charges associated with E911 services at its sole discretion and without written notice to Customer.
20. Rate Changes: Open One in its sole discretion may change rates at any time and without written notice to Customer, including without limitation, pricing, taxes or fees. All rate changes shall become effective at the start of the next billing cycle for MRC’s or immediately for NRC’s such as Equipment purchases or charges for International Minutes. Customers, who have committed to Service Plans, will not be subject to Service Plan increases during the Initial Term, or mid-Renewal Term, with the exception of taxes, fees and NRC’s.
21. Reasonable Use Policy: Customer agrees and represents that usage by call centers, excessive conference calling, continuous call forwarding, fax blasting, telemarketing, spamming by fax or phone, interconnecting a secondary device that is not being billed as an extension to participate in Open One’s Service Plans, or any other high volume or multi-person calling is considered to be unreasonable in accordance with Open One’s Reasonable Use Policy (“Reasonable Use Policy”). Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, violate the intellectual property rights of others or otherwise violate any applicable local, state, national or international statute, regulation, or other law. Said uses are considered to be inconsistent with Open One’s Reasonable Use Policy and considered a material breach of this Agreement that may result in immediate suspension or termination of Customer’s account. All Open One Services are provided with unlimited inbound and outbound Continental US domestic minutes subject to Open One’s Reasonable Use Policy (“Reasonable Use Policy”). Phone extensions sold subject to this Reasonable Use Policy have up two thousand (2,000) inbound and outbound Continental US domestic minutes per month allowed for each extension. Any minutes in excess of this in aggregate for any extension under this Agreement constitutes usage outside of our Reasonable Use Policy and shall be charged for at a rate of US $0.02 cents per minute.
22. Evaluation of Usage: Open One reserves the right to monitor and review Customer’s calling, faxing or conferencing usage (“Usage”) for unlimited or unmetered Service Plans at any time to determine if Customer’s Usage is excessive or in compliance with Open One’s Reasonable Use Policy. Customer understands and agrees that if Open One finds Customer in violation of its Reasonable Use Policy, Open One, except where prohibited by law, may modify, suspend or terminate Customer’s account. Customer further agrees that Open One may enforce this policy in accordance with said terms, and charge Customer on a per minute basis for any Usage that exceeds its Reasonable Use Policy, and Customer agrees to pay for such Usage, including any taxes or fees associated with said Usage.
23. Fraudulent Charges and Activity: In the event Customer suspects fraudulent activity or charges from usage Customer believes did not originate from their business phones or Equipment, Customer agrees to contact Open One immediately. Customer understands that they must contact Open One within thirty (30) days after suspected fraudulent activity or Customer waives its rights to object or challenge such charges. Notwithstanding the above, Customer agrees it is solely liable for any transactions or activities for usage charges on their account and in no event shall Open One be liable for any unauthorized use of Customer account.
24. Power, Electrical or Internet Failure: Customer acknowledges and understands that Services provided by Open One will not work if there is a power failure on the Customer premises which denies power to Customer’s own equipment or network infrastructure. Customer also acknowledges and understands that the service provided by Open One will not function if Customer’s internet, broadband and/or internal network infrastructure fails.
25. Purchase or Rental of Phone Equipment: Customer must purchase or rent Equipment for Services directly from Open One at prices stated on the Open One Quote. If Customer has existing equipment it wishes to re-use, it will notify Open One and Open One at its sole discretion may agree to reprogram Customer’s existing equipment to its specifications for a fee to be negotiated between Customer and Open One. All Equipment purchased or rented from Open One will be shipped F.OB at Customer’s expense from Open One’s Facility. Any Equipment rented under the Open One Rental Program, pursuant to the terms and conditions on Customer’s Open One Quote assumes an ongoing rental arrangement between Customer and Open One, and all said Equipment rented from Open One will be returned to Open One at the end of the Customer’s Term. During the Term of the rental period, Open One will assume all responsibility for the repair and or replacement of Customer’s rented Equipment.
26. Ownership of Equipment: Open One has title to all Equipment rented by Customer under the Rental Program and may affix a label to indicate that at any reasonable time. Customer’s obligations under the Rental Program are absolute.
27. Insurance under Rental Program: Customer agrees to keep the Equipment fully insured for the term of this Agreement. Customer also agrees to obtain general public liability insurance from someone acceptable to Open One and to include us as an additional insured. Customer agrees to provide Open One with certificates or other evidence of the insurance policies acceptable to Open One before this Rental Program begins. The insurance must provide that we be given at least a thirty (30) day notice of any cancellation or material change.
28. Shipping Policy: Open One will ship to all 50 U.S. states including Canada; however we do not ship to any P.O. Boxes or freight forwarder addresses. We are not able to process C.O.D., hand carry or will-call orders.
29. Equipment Warranty: Any Equipment purchased through Open One comes with the original manufacturer’s warranty. If any Equipment purchased from Open One becomes defective during the warranty period, Open One will assist Customer with replacing its purchased Equipment if it remains under warranty. Open One does not warranty third party equipment and any Equipment purchased from Open One returned to the manufacturer will be replaced based upon the manufacturer’s warranty and replacement policies. Open One disclaims any liability for Equipment purchased from Open One not repaired or replaced by manufacturer for any reason. Open One will not be responsible or cover any replacements for Equipment purchased from Open One that has been lost, stolen or modified by Customer. If Open One rents the Equipment as signed and agreed to on Customer’s Open One Quote form, Open One will be responsible for the replacement of defective Equipment, providing that the defect was not caused by misuse on part of Customer.
30. Equipment Return Policy: Customer is responsible for all return shipping charges for any hardware returned to Open One for any reason, including any Equipment purchased from Open One that is still under warranty, if Equipment was purchased by Customer. If Open One rented the Equipment as signed and agreed to on Customer’s Open One Quote form, Open One will pay all shipping charges for the replacement of the defective Equipment, providing that the defect was not caused my misuse on part of Customer. Any Equipment returned to Open One may only be done so after obtaining a Return Merchandise Authorization (“RMA”) number from Open One. Customer will have ten (10) business days after receipt of RMA to ship the Equipment back to Open One at the address we provide. Once the defective Equipment is received by the original manufacturer, the manufacturer will process your return or replacement under its applicable warranty policy. Open One will pay for return shipping to Customer.
31. Software License: Open One will allow Customer to use its Systems and Software on a licensed basis. Open One grants Customer a nonexclusive recurring license to use its Systems, Software and Portal which shall be renewed each month upon Customer’s payment to Open One. Use of Open One’s Systems, Software and Portal are subject to the Terms and Conditions of this Agreement. If Customer does not pay Open One within terms specified in Paragraph 10 of this Agreement, the software license shall expire and Customer will no longer have access to the Open One Systems, Software and Portal, and Open One in its sole discretion may elect to terminate this Agreement with Customer. If Customer or Open One provide notice of intent to cancel for reasons other than non-payment, Customer’s license to use the Open One Systems, Software and Portal shall expire upon the termination date of this Agreement.
32. New Telephone Numbers: Open One will supply new numbers to Customer and accommodate Customer’s request for telephone numbers, including facsimile numbers and toll free numbers if desired, (“Phone Numbers”), in area codes Customer chooses on a best efforts basis. Customer hereby acknowledges and understands that Phone Numbers in certain area codes may not be available from time to time, or at all, and Open One bears no liability for failure to meet Customer’s request for Phone Numbers in area codes requested by Customer.
33. Porting of Customer Numbers: Open One will port Customer’s existing Phone Numbers upon Customer’s request. Customer must sign and send Open One a properly filled out Letter of Authorization form (“LOA”) for any porting request along with a copy of a recent phone bill evidencing ownership of the Phone Numbers to be ported. All porting will be done on a best efforts basis and Open One disclaims all liability for the inability to complete any specific porting request. Customer understands that failure to provide any information requested by Open One or third party service providers as it relates to the porting in or out of Customer’s Phone Numbers will result in the delay of the porting process. Open One shall not be responsible or liable for any said delays and will not provide any usage credits for any such delays. Open One shall charge a fee specified in the Open One Quote for the porting in of each Phone Number requested by Customer into its System. Customer shall at all times retain ownership of its Phone Numbers including Phone Numbers obtained for Customer by Open One, as long as its account is in good standing. If Customer decides for any reason to terminate Services and attempts to port its Phone Number(s) to another provider, Open One will cooperate with Customer to port designated Phone Numbers owned by Customer out of its System as long as Customer’s account is paid in full. Customer shall pay a fee of $25 per Phone Number to Open One prior to Open One allowing a Phone Number to be ported out of its system. Open One will not release any Phone Numbers if Customer’s account has an outstanding balance.
34. Technical Support: Open One will provide technical support to Customer via our electronic Network Operations Center (“NOC”) or toll free telephone 365x24x7. Support is limited to the Services and Equipment purchased from Open One. Open One does not support and has no obligation to support any other equipment not obtained from Open One or application, including internal networks or internet connectivity, which is the sole responsibility of Customer. Certain Phones sold by Open One are based upon the Android OS . Support on these phones is strictly limited to the telephony application’s on the phone needed to make the phone work with the Open One System. Open One will not provide support for Android app’s that Customer downloads on Android based phones which are outside the scope of the telephony application the phone was sold for.
35. Login and Registration Information: Customer is solely responsible for keeping all information provided by Open One for Login’s to the System and registration of Equipment Confidential. Customer hereby agrees not to permit access to Login or registration information to any third party. In the event that an employee of Customer who has this information is no longer employed by Customer for any reason, Customer hereby agrees to notify Open One immediately so that employee’s credentials can be removed from Open One System. Customer shall be responsible for any misuse of Login or registration information and Open One bears no liability of such misuse.
36. Protection of Network: Open One shall be entitled, at is sole discretion, to terminate Service to Customer without advance notice if it deems Customers network or phones are causing harm or disruption to the Open One network, or threatens or compromises the integrity or security of its vendors. In the event that Open One decides to take this action, it will notify Customer as soon as practical after taking any appropriate action to protect its network.
37. Permitted Use of Service: Customer agrees and understands that the Services provided by Open One may be used for lawful purposes only. Customer agrees that it will not use Open One Services for any illegal, fraudulent, misuse or abusive purpose in any way (“Prohibited Traffic”). This includes any traffic that may be construed by the FCC, FTC or any other regulatory authority to be in violation with the law. Said Prohibited Traffic includes without limitation, “Robo generated calls,” “blaster” calls, calls initiated by automated dialing equipment designed to play a pre-recorded message not in compliance with FCC, FTC or any other regulatory authority, or sequential number dialing for purposes of obtaining certain information. Customer further represents and warrants it will not use the Open One Services in any ways that violate laws prohibiting transmission of unsolicited faxing or third party consent for call recording or eavesdropping, infringe or interfere with the rights of users, employees, or other third parties. Additional examples of illegal, fraudulent or inappropriate uses of Open One Services are if the Service is used in a way that is threatening, abusive, libelous, deceptive or invasive. Customer further agrees that the Services and Equipment purchased or obtained from Open One are for Customer’s internal use only and Customer shall not resell or transfer Services or Equipment without the advance express written consent of Open One. Open One retains the right, in accordance with Paragraph 22, to review Customer account and take further action if necessary including without limitation immediate suspension of Customer’s Services without advanced notice, if Open One becomes aware that the Service it is providing to Customer is being used unlawfully. Customer agrees and understands that it is solely responsible for all written or audible content sent by Customer through the Open One System. Customer agrees to indemnify and hold harmless Open One for any claims by third parties due to content sent by Customer.
38. Call Recording and Eavesdropping: Open One’s System provides a feature for call recording and eavesdropping for quality and training purposes. Customer understands that there are federal and state statutes governing the recording of a conversation or eavesdropping on a call in progress. CUSTOMER REPRESENTS AND AGREES THAT BEFORE ACTIVATING EITHER OF THESE FEATURES ON THEIR PHONE SYSTEM, THEY WILL DO THE DUE DILIGENCE ON BOTH A FEDERAL AND STATE LEVEL IN THE STATE WHERE THE SERVICES WILL BE DELIVERED, OR THE STATE WHERE THEY WILL BE USING Open One’S CALL RECORDING OR EAVESDROPPING FEATURE, PRIOR TO USING THIS SERVICE. UNDER NO CIRCUMSTANCES WILL Open One BE LIABLE FOR ANY DAMAGES DUE TO THE — USE OF THESE SERVICES OR FOR MISINTERPRETATION OR LACK OF UNDERSTANDING ON CUSTOMER’S BEHALF OR ANY ILLEGAL — USE OF THESE SERVICES OR FEATURES.
39. Termination or Modification of Services: Open One reserves the right to modify the Terms or Services of this Agreement, including without limitation, pricing, Service Plans, content or nature of Services without written notice. Customer’s continued use of Services constitutes acceptance and agreement with said modifications.
40. Termination of Agreement: Open One shall be entitled at its sole discretion, to suspend, terminate or change Services offered without advanced written notice, in the event of Customer breach, including without limitation Customer’s declaration of insolvency, corporate reorganization, arrangement with creditors, receivership, dissolution or the filing of a petition for relief by or against bankruptcy, or any other similar federal, state or statute, including moratorium laws. Open One may also immediately terminate this Agreement and Customer will be considered in breach, if Customer fails to pay any sum due hereunder, misuses the Services in any way as deemed by Open One in its sole discretion, is suspected of transporting fraudulent calls over the Open One network or vendor’s network, or any other activity by Customer that adversely affects the Services or network of Open One. Customer agrees that Open One’s determination is unilateral, final and binding on Customer, and Customer is not entitled to any refunds under this Agreement for either amounts already paid, or a pro-rata refund for any remaining Term, if this Agreement has been violated in any way. Customer’s obligation to pay billed and accrued charges, taxes and fees shall survive any termination of this Agreement. Open One or Customer may also terminate this Agreement without penalty at the end of any Term of this Agreement by providing the other Party thirty (30) days advanced written notice of its intent to cancel.
41. Effects of Termination: Upon termination of this Agreement, Customer shall be responsible for any amounts unpaid and accrued. Upon failure by Customer to pay any amounts due, Open One may at its sole discretion institute a collection or legal action to recover amounts due to Open One. In the event that Open One institutes such an action, Customer shall be responsible to pay all collection or court fee’s incurred by Open One. In the event that Open One breaches this Agreement in any way, Customers sole remedy is to terminate this contract and port its numbers to another provider, providing all outstanding balances owed have been paid in full.
42. Discontinuance of Services: Upon expiration, cancellation or termination of Open One Services, Customer shall immediately relinquish and discontinue use of all Phone Numbers, including facsimile and toll free numbers, voice mail boxes, logins, and access to Systems assigned to Customer by Open One.
43. Disclaimer of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES AGREE THAT Open One HAS NOT MADE, AND THAT THERE DOES NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THAT ALL SERVICES AND FACILITIES PROVIDED HEREUNDER ARE PROVIDED “AS IS,” WITH ALL FAULTS.
44. Limitation of Liability: The cumulative liability of Open One for any loss relating to or arising out of any act or omission in its performance under this Agreement, whether in contract, warranty, strict liability, or tort, including without limitation, negligence of any kind, shall be limited to the total amount that is or would have been charged to Customer during the particular month for MRC’s in which the act or omission occurred. Open One shall not be liable for any fraud, including without limitation, fraudulent usage charges, illegal use of Open One Services and hacking, nor shall Open One be liable for any indirect, incidental, consequential, or special damages, including without limitation, damages for lost profits, lost revenues, and lost savings suffered by Customer regardless of the form of action, whether in contract, warranty, strict liability, tort, including without limitation, negligence of any kind and regardless of whether Open One knew the possibility that such damages could result. Notwithstanding any other provisions in this Agreement, Open One hereby disclaims any liability and Customer agrees that Open One shall not be liable for any fraud, including without limitation, fraudulent usage charges, or hacking (“Activity” or “Activities”), as it relates to Customer’s participation in International Dialing and as a consideration for this right to participate in International Dialing, Customer, and Customer’s heirs, executors, administrators, assigns, and personal representatives (knowing and voluntarily), enter into this Waiver and Absolute Release of Liability (“Waiver and Absolute Release of Liability”) and hereby relinquish any and all rights, claims, or causes of action of any kind whatsoever arising out of Customer participation in International Dialing and subsequent Activity as a result thereof. Customer further understands that such Activities may arise from Customer’s own negligence, another’s negligence, or a third party’s intent to commit such fraudulent Activities, and agrees to indemnify and hold harmless Open One against any and all claims, suits or actions of any kind whatsoever for liability, damages, compensation or otherwise brought by Customer or anyone on Customer’s behalf, including attorney’s fees and any related costs, should litigation arise pursuant to any claims made by Customer or by anyone acting on Customer’s behalf. Customer hereby waives any right to bring legal action against Open One for any damages related to Activity, and should Open One incur any of these types of expenses, Customer agrees to reimburse Open One.
45. Indemnification: Customer hereby releases and agrees to indemnify, defend, protect and hold harmless Open One, its officers, employees, directors, agents, shareholders from and against, and assumes liability for 1) any injury, loss or damage to any person, tangible property or facilities of any lawsuits coming from Customer’s end-users, third person or entity (including reasonable attorneys’ fees and costs) to the extent arising out of or resulting from the negligent acts or omissions of Open One, its officers, employees, servants, Affiliates, agents, contractors, licensees, invitees or vendors; and 2) any claims, liabilities or damages arising out of any violation by Open One of any regulation, rule, statute or court order of any local, state or federal governmental agency, court or body in connection with its use or the provision of the Switch; and 3) notwithstanding the above, Customer agrees to indemnify Open One for any third party claims regardless of the reason for the claim. WITH THE EXCEPTION OF THE OBLIGATION TO INDEMNIFY HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING DAMAGES BASED ON LOSS OF REVENUES, PROFITS OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF WHETHER THE RESPECTIVE PARTY HAD BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES.
46. Force Majeure: Open One shall not be liable for any delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence including, without limitation, acts of nature, acts of civil or military authority, government regulations, embargoes, epidemics, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, work stoppages, power blackouts, volcanic action, other major environmental disturbances, or unusually severe weather conditions. Inability to secure products or services of other Persons or transportation facilities or acts or omissions of transportation carriers shall be considered Force Majeure Events to the extent any delay or failure in performance caused by these circumstances is beyond the Open One’s control and without Open One’s fault or negligence.
47. Assignment of Agreement: Customer may not assign or transfer, whether by operation of law or otherwise, this Agreement or any rights or obligations hereunder, to a third party without the express written consent of Open One, which consent shall not be unreasonably withheld. In the event Customer wishes to transfer or assign its rights and obligations under this Agreement to a third party, it shall notify Open One in writing of such intent a minimum of thirty (30) days prior to the date Customer wishes the assignment or transfer to go into effect. Open One will in its sole discretion grant or deny the transfer and notify Customer in writing of its decision.
48. Arbitration Procedures: All disputes arising out of or in connection with this Agreement, including without limitation the breach of this Agreement, disputes arising after termination of this Agreement, provision of Services, billing disputes, or disputes concerning the scope of this Arbitration provision, (collectively, “Claims”) shall be finally settled by arbitration (“Arbitration”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The place of Arbitration shall be in Cook County, in the State of Illinois, the language of Arbitration shall be English, and the AAA shall determine the matters of Claims in accordance with the law of the State of Illinois. The Parties agree that the award of the AAA shall be the sole and exclusive remedy between them, and judgment upon the award of the AAA will be final and binding. Customer warrants and represents to waive its rights to any trial by jury, Class Arbitrations or Class Action Law Suits and subsequently, the AAA may not consolidate claims outside of Customer’s Claim. Any costs, fees, or taxes incident to enforcing the award shall, to the maximum extent permitted by law, are charged to the losing Party in any action. The award shall include interest from the date of any Claims incurred and from the date of the award until paid in full, at a rate to be fixed by the AAA but in no event less than the prime rate published in the Money Rates column of the Wall Street Journal, or, if the prime rate stops being so published or is otherwise unavailable, at comparable interest rate established by a prominent lending institution.
49.Formal Notice of Claim: Before Customer institutes notice for Arbitration, Customer will amicably agree to provide Open One an opportunity to resolve the Claim, by sending the presumed “Notice of Claim” in writing via certified mail or overnight courier with verification of signature receipt, to Open One corporate headquarters at 744 N. Wells Street, Chicago, IL 60654, Attention Legal Department, or send email notification to legal@Open Oneint.com. The Notice of Claim must describe the basis of the Claim and the specific relief sought. Open One agrees to attempt to resolve the Notice of Claim within thirty (30) calendar days of receipt of the correspondence. If Open One is unable to resolve the Notice of Claim to the satisfaction of the Customer, then Customer may initiate to move to Arbitration as defined in Paragraph 47. Customer will not demand Arbitration, nor will Open One agree to Arbitration, unless the foregoing procedures have been followed by Customer. Customer has one (1) year to assert any Claim against Open One and failure to assert Claim in this time, will result in Customer’s waiver of legal right to Claim.
50. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. Any and all disputes between the Parties that arise out of or in connection with this Agreement or either Party’s performance or nonperformance of any obligations hereunder, including without limitation all disputes related directly or indirectly to the interpretation, enforcement, or termination of this Agreement or any torts committed or alleged to have been committed, in connection with the negotiation, performance, or nonperformance of this Agreement, shall be governed by the laws of the State of Illinois, without regard to its conflicts of law rules.
51. Severability: The unenforceability of any provision or provisions of this Agreement shall not render unenforceable other provisions of this Agreement. In the event that any provision of this Agreement is deemed unenforceable or invalid in whole or in part, then this Agreement shall be modified and amended as necessary to exclude the unenforceable provision or provisions and render the Agreement as enforceable and to the extent possible consistent with the original intent of the Agreement between the Parties.
52. Survival of Terms: The provisions of Paragraphs 2,10, 12, 13, 14, 15, 39, 40, 41, 42, 43, 44, 47, 48, 49 and 50 shall survive any expiration or termination of this Agreement.
53. Headings: Headings in this Agreement are strictly for convenience and shall have no effect in the construction or interpretation of this Agreement.
54. No Waiver: The failure of Open One to enforce or exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision.
55. General: The Terms and Conditions of this Agreement, including without limitation, The Open One Quote, Service Addendum or any additional documentation that make up the final Customer order, all of which is agreed upon and signed by authorized Parties, constitutes the full and entire understanding and Agreement between the Parties with regard to the subjects of this Agreement and sale of Open One Services and Equipment, and expressly supersedes any prior or contemporaneous understandings, agreements, or representations, by or between the Parties, written or oral, to the extent they relate in any way to the subjects of this Agreement.
Policy Updated: August 1, 2016